United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-3974
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Northern
Ray Campbell, * District of Iowa.
*
Appellant. *
___________
Submitted: May 12, 1998
Filed: August 6, 1998
___________
Before McMILLIAN, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Acting on a tip from hotel employees, police officers in Cedar Rapids, Iowa,
went to the hotel to arrest Jose Dealejandro for a parole violation. At the time that they
effected the arrest, the officers detained and searched three people who were with
Mr. Dealejandro, including Ray Campbell. On Mr. Dealejandro’s person, the officers
found 155 grams of amphetamine and a .22-caliber semi-automatic pistol; in the room
that Mr. Dealejandro had rented, they found a police scanner and a small quantity of
marijuana. On Mr. Campbell’s person, the officers found a 10-millimeter semi-
automatic pistol and $1,793 in cash; on the ground in front of Mr. Campbell, they found
keys to a Chrysler.
The officers soon located the owner of the Chrysler, who had arrived at the hotel
in Mr. Campbell’s Pontiac, and they then searched both vehicles. In the Chrysler, the
officers found a number of rounds of ammunition and spent shell casings, a holster, and
a notebook that they believed to be a drug ledger; in the Pontiac, they discovered an
empty bottle of ephedrine, a drug used in the manufacture of methamphetamine.
Mr. Campbell was arrested and indicted, as relevant here, for possessing 155
grams of amphetamine and aiding and abetting the possession of that amphetamine with
intent to distribute it, see 21 U.S.C. § 841(a)(1), § 841(b)(1)(C), and 18 U.S.C. § 2(a),
and for conspiring to distribute amphetamine, see 21 U.S.C. § 846. After a two-day
trial, a jury convicted Mr. Campbell on those counts, and the trial court sentenced him
to 160 months in prison.
Mr. Campbell appeals his conviction, arguing that the trial court erred in
allowing Bryce Scott to testify at trial that he saw Mr. Campbell at a garage on the
same day that a friend of Mr. Scott’s purchased two kilograms of cocaine there.
Mr. Campbell also appeals his sentence, arguing that the trial court improperly included
the sale of cocaine to Mr. Scott’s friend as relevant conduct in determining
Mr. Campbell's sentence. Finally, Mr. Campbell argues that the trial court improperly
excluded the testimony of certain witnesses at sentencing regarding other alleged
relevant conduct.
We find no error in the conviction and we therefore uphold it. On the sentencing
issues, however, we find that the record does not support the trial court’s findings of
fact with respect to the sale of the two kilograms of cocaine to Mr. Scott’s friend. We
therefore vacate Mr. Campbell's sentence and remand the matter for further
proceedings.
-2-
I.
At trial, the government called Mr. Scott, who had had a conversation with
Mr. Campbell while they were both incarcerated. According to Mr. Scott’s testimony,
during that conversation Mr. Campbell reminded Mr. Scott that the two of them had
met at a garage in Moline, Illinois, and Mr. Scott then recalled seeing Mr. Campbell
there. Mr. Scott further testified that Mr. Campbell also reminded him that drugs had
been sold at the garage that day. Finally, Mr. Scott testified that a friend of his had
indeed purchased two kilograms of cocaine that day at the garage, although Mr. Scott
did not testify that Mr. Campbell was involved in the sale of that cocaine.
The trial court admitted Mr. Scott’s testimony over Mr. Campbell’s objection
under Fed. R. Evid. 404(b), as evidence that Mr. Campbell’s involvement with
Mr. Dealejandro and the 155 grams of amphetamine was not a mistake. After carefully
reviewing the record, we hold that even if the trial court erred in admitting this
evidence, given the compelling evidence in the record of Mr. Campbell’s guilt (not the
least damning of which was his admission to Mr. Scott that he was Mr. Dealejandro’s
partner in dealing drugs), the error was harmless at worst. See, e.g., United States v.
Beasley, 102 F.3d 1440, 1449 (8th Cir. 1996), cert. denied, 117 S. Ct. 1856 (1997).
II.
Mr. Campbell raises two sentencing issues. As a preliminary matter, we
disagree with the government’s contention that Mr. Campbell has waived any objection
to the facts contained in his presentence report (PSR). In a presentence submission, the
government and Mr. Campbell did indeed stipulate that the facts set forth in relevant
paragraphs of the PSR accurately reflected evidence presented at trial. In that same
submission, however, Mr. Campbell also clearly objected to the paragraphs in which
three specific drug transactions, involving two different drugs, were attributed to him
as conduct relevant to sentencing.
-3-
It is familiar law that the government must establish, by a preponderance of the
evidence, the quantities of drugs to be attributed to a defendant for sentencing
purposes. See, e.g., United States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir. 1997),
cert. denied, 118 S. Ct. 2063, 2064 (1998). Under Fed. R. Crim. P. 32(c)(1), the
sentencing court must determine these amounts at the sentencing hearing. A sentencing
court’s determination of the quantity of drugs is a finding of fact and is reviewed for
clear error. See, e.g., United States v. Payne, 119 F.3d 637, 645 (8th Cir. 1997), cert.
denied, 118 S. Ct. 454 (1997).
In this case, the trial court attributed to Mr. Campbell two quantities of drugs in
addition to the 155 grams of amphetamine that Mr. Dealejandro was carrying. First,
the court concluded from Mr. Scott’s testimony that Mr. Campbell had been involved
in the sale of the two kilograms of cocaine at the garage. Second, the court attributed
seven ounces of methamphetamine to Mr. Campbell based on the testimony of Samuel
Robertson. We turn first to the question of the cocaine.
We cannot find any support in the record for the attribution to Mr. Campbell of
the two kilograms of cocaine sold to Mr. Scott's friend. Mr. Scott was the only witness
at trial who testified about this cocaine transaction, and his testimony, as relevant here,
was limited to establishing that Mr. Campbell was present at a garage where drugs
were sold and that Mr. Campbell was aware that drugs were sold there. Mr. Scott's
testimony also tended to show that two kilograms of cocaine were sold at the garage
on the same day that Mr. Campbell was there. But Mr. Scott did not testify that
Mr. Campbell was present at the garage when this sale of drugs took place, let alone
that Mr. Campbell was involved in the sale in any way. We therefore believe that the
trial court clearly erred in attributing the two kilograms of cocaine to Mr. Campbell.
With respect to the methamphetamine, we find ample evidence in the record to
support the attribution of the seven ounces of methamphetamine to Mr. Campbell.
Mr. Robertson stated at trial that Mr. Campbell had sold approximately one ounce of
-4-
methamphetamine to him on at least six occasions and that, on another occasion, he had
traded six to eight firearms to Mr. Campbell in exchange for an additional one or two
ounces of methamphetamine.
Mr. Campbell contends that the trial court refused to allow him to present the
testimony of three witnesses to rebut Mr. Robertson’s testimony. Mr. Campbell asserts
that in doing so, the trial court violated the provisions of Fed. R. Crim. P. 32(c)(1) that
require a sentencing court to make specific findings with respect to any factual
determinations contained in a PSR that a defendant challenges or to state that the
material at issue will not be considered in imposing the sentence. The rule further
provides that a sentencing court, “in its discretion,” “may ... permit the parties to
introduce testimony or other evidence” that is relevant to the challenge. It is apparent
to us, however, that Mr. Campbell forfeited the opportunity to bring witnesses to testify
at his sentencing.
Mr. Campbell and the government signed the presentence submission already
alluded to on August 21, 1997, and in it Mr. Campbell stated his desire to bring three
witnesses who were incarcerated to testify at the sentencing hearing. A little more than
a month later, the trial court ordered Mr. Campbell to set forth the witnesses’ addresses
and the substance of their expected testimony, and to file this information no later than
5:00 p.m. on October 2.
On October 2, however, Mr. Campbell’s attorney mailed a letter explaining, in
general terms only, that his witnesses would testify that Mr. Robertson was lying at the
trial and was doing so only to get better treatment from the government in his own case.
The letter did not include the addresses of the three witnesses, even though
Mr. Campbell, at the sentencing hearing at least, seemed to know their whereabouts in
the prison system.
-5-
The trial court did not receive the letter until October 6. That same day, the trial
court granted an extension of its order, giving Mr. Campbell until October 10 to
comply, but Mr. Campbell failed to amend his statement to give addresses or a more
specific indication of what the testimony of his witnesses would be. Finally, on
October 20, the trial court denied Mr. Campbell’s Motion for Production of
Incarcerated Witnesses, noting that he had failed to comply with the court's prior
orders. We think that this denial was altogether reasonable, given Mr. Campbell's
series of failures to meet the trial court's deadlines.
III.
For the reasons given, we affirm Mr. Campbell’s conviction. We vacate his
sentence and remand the matter to the trial court for further proceedings not
inconsistent with this opinion.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-